Hernan Sindicue-Herrera v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 08-3153
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HERNAN SINDICUE-HERRERA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A97-447-406)
Immigration Judge: Honorable Annie S. Garcy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 8, 2009
Before: SLOVITER, STAPLETON and COWEN, Circuit Judges
(Opinion filed: July 13, 2009 )
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OPINION
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PER CURIAM
Hernan Sindicue-Herrera, a native and citizen of Colombia, entered the United
States in 1998 with his wife and two children on visitor visas, which they subsequently

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overstayed. In 2005, he was served with a Notice to Appear and conceded his
removability before an Immigration Judge (IJ). He then applied for withholding of
removal and protection under the Convention Against Torture (CAT), arguing that if he
returned to Colombia he would be persecuted and tortured by a guerilla organization
called the Revolutionary Armed Forces of Colombia (FARC). In particular, he testified
that members of the FARC forced him and others in his hometown to attend recruitment
meetings; he explained that he attended those meetings out of fear of reprisals by the
guerillas. Sindicue-Herrera further testified that he moved to the capital, Bogota, to
escape the FARC and that after his move, members of the guerilla organization
questioned his parents as to his whereabouts. He also submitted evidence demonstrating
that FARC members murdered his cousin for refusing to attend the meetings.
Although the IJ concluded that Sindicue-Herrera’s testimony was credible, she
denied relief, concluding that he had not carried his burden of proving that his experience
with the FARC guerillas in his hometown constituted persecution and that the record did
not show that he more likely than not faced a likelihood of persecution or torture if he
returned to Colombia. On appeal, the Board of Immigration Appeals (BIA) affirmed. As
to his withholding of removal claim, the BIA agreed that the FARC forcing him to attend
lectures did not satisfy the statutory definition of persecution. The BIA also rejected
Sindicue-Herrera’s claim that “those the FARC believes have something of worth”
constituted a “social group” under the withholding of removal regulations. Finally, the

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BIA concluded that Sindicue-Herrera’s fear of persecution is not countrywide, pointing to
his relocation to Bogota, where he faced no encounters with the FARC for nine years.
The BIA also concluded that Sindicue-Herrera did not carry his burden of proving
his entitlement to CAT relief. It observed that even if he had shown that the Colombian
government is “willfully blind” to the FARC’s conduct, Sindicue-Herrera had not
demonstrated that he will more likely than not face torture at the hands of FARC if
returned to Colombia, pointing again to his safe relocation to Bogota.
We have jurisdiction under 8 U.S.C. § 1252. We uphold the BIA’s determinations
if they are supported by reasonable, substantial, and probative evidence on the record
considered as a whole. Yusupov v. Att’y Gen., 518 F.3d 185, 197 (3d Cir. 2008). Under
the substantial evidence standard, the BIA’s determinations “must be upheld unless the
evidence not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft,
242 F.3d 477, 483-84 (3d Cir. 2001) (citing INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1
(1992)).
To be eligible for withholding of removal, Sindicue-Herrera must demonstrate that
“there is a greater-than-fifty-percent chance of persecution” in Colombia based on one of
the protected grounds. Senathirajah v. INS, 157 F.3d 210, 215 (3d Cir. 1998); see also 8
U.S.C. § 1231(b)(3). For relief under the CAT, Sindicue-Herrera must demonstrate that it
is more likely than not that he would be tortured if removed to Colombia. See 8 C.F.R.
§ 208.16(c)(2). The torturous acts must be inflicted “by or at the instigation of or with the

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consent or acquiescence of a public official or other person acting in an official capacity.”
8 C.F.R. § 1208.18(a)(1).
The BIA’s determinations are supported by substantial evidence. Sindicue-Herrera
devotes much of his appellate brief to arguing that the government of Colombia is
“willfully blind” to the activities of the FARC. See Silva-Rengifo v. Att’y Gen., 473 F.3d
58, 70 (3d Cir. 2007) (“For purposes for CAT claims, acquiescence to torture requires
only that government officials remain willfully blind to torturous conduct and breach their
legal responsibility to prevent it.”) He fails, however, to address the more salient portion
of the BIA’s finding: that he would not face torture if he returned to Colombia.
Specifically, the BIA found that Sindicue-Herrera lived in Bogota for nine years without
facing torture at the hands of the FARC. See 8 C.F.R. § 1208.16(c)(3)(ii) (Evidence that
the applicant could relocate to a part of the country of removal where he is not likely to be
tortured is relevant in assessing possibility of future torture.) That finding constitutes
substantial evidence to uphold the BIA’s determination.
For similar reasons, the BIA’s determination as to withholding of removal is also
supported by substantial evidence. Sindicue-Herrera argues that males who are actively
recruited by FARC constitute a “particular social group” under 8 U.S.C. § 1231(b)(3)(A).
The BIA, however, held that even accepting Sindicue-Herrera’s argument, he failed to
establish that the FARC persecuted him. As the BIA noted, Sindicue-Herrera was forced
to attend lectures and perform errands for the FARC and that he was a victim of a

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Sindicue-Herrera also testified to an incident where guerillas put a gun to his head1
and threatened to kill him and his father. However, he further testified that the guerillas
explained that they mistook him for another person they were looking for.
(Administrative Record 108-09).
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robbery. This does not fall within the definition of persecution which we have1
previously defined as “threats to life, confinement, torture, and economic restrictions so
severe that they constitute a threat to life or freedom.” Al-Fara v. Gonzales, 404 F.3d
733, 739 (3d Cir. 2005) (finding no persecution where soldiers entered petitioner’s home
by force but petitioner was not arrested, detained, abused or physically harmed as a result
of the encounter.) While the murder of Sindicue-Herrera’s cousin in 1994 is undoubtedly
tragic, Sindicue-Herrera has not demonstrated that the murder was in any way connected
to him or his contacts with the FARC. Moreover, as with the CAT claim, the withholding
of removal claim is undermined by his ability to live free from harm in Bogota for nine
years. See 8 C.F.R. § 1208.16(b)(2). Sindicue-Herrera testified that the FARC came to
his parents’ house to look for him during that time; however, he does not state that any
harm came to him or his family because of these inquiries.
Finally, Sindicue-Herrera’s due process claim is without merit. The claim amounts
to a contention that the BIA and IJ failed to consider all of the evidence he submitted. A
review of the detailed opinions of the BIA and the IJ reveals that both considered all the
evidence, found it credible, and denied Sindicue-Herrera’s claims based on his failure to
prove persecution or a likelihood that he would be tortured in Colombia. See

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Abdulrahman v. Ashcroft, 330 F.3d 587, 596 (3d Cir. 2003) (citations omitted) (“In the
context of an immigration hearing, due process requires that ‘aliens threatened with
deportation are provided the right to a full and fair hearing’ that allows them ‘a
reasonable opportunity to present evidence’ on their behalf.”)
For these reasons, we will deny Sindicue-Herrera’s petition for review.

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